Inspector-General of Taxation report
I am pleased to report that the office of the Inspector-General of Taxation (IGT) has successfully met the challenges of another year, particularly as it was no ordinary year. It was marked by the transformation of the role of the IGT following the Government’s decision1 to create a ‘single port of call’ for taxpayer complaints and requests for broader reviews into tax administration.
Specifically, the Government’s decision transferred the tax complaints function from the Commonwealth Ombudsman (the Ombudsman) to the IGT, whose role was previously limited to conducting reviews into tax administration issues of a systemic nature. This transfer required specific legislation and was implemented seamlessly. Whilst this was a cause for celebration in its own right, particularly given the small size of my office, considerable work was also undertaken to complete four systemic reviews during the same period. I am very grateful to my staff — it is an achievement of which everyone associated with my office deserves to be proud.
In the proceeding sections of this report, the work completed to transfer the complaints handling function as well as its features and benefits are set out followed by the diversity of matters that have been addressed in my completed reviews, including my assistance to the House of Representatives Standing Committee on Tax and Revenue with its Inquiry into Tax Disputes.
The reviews to be completed are discussed next, followed by the Government’s policy initiatives arising from IGT reviews as well as consultation with key stakeholders and the IGT’s future direction.
Transfer of the tax complaints handling function
In the 2014 Federal Budget, the Government made a policy decision to transfer the tax complaints function to the IGT from the Ombudsman. This decision will enhance the systemic review role of the IGT and provides taxpayers with more specialised and focused complaints handling of tax matters.
The IGT is well-placed to provide taxpayers with the required specialist assistance given its 12 years of experience in conducting reviews into key areas of concern in tax administration. These reviews, including extensive stakeholder consultations, have provided the IGT a deep understanding of the workings of the Australian Taxation Office (ATO) and how its administration of the tax system affects tax practitioners as well as taxpayers — individuals, micro-businesses, small-to-medium enterprises or large businesses.
The Government decision also expanded the scope of the IGT’s scrutineering function to include the Tax Practitioners Board (TPB).
The legislation that gave effect to the Government decision took effect on 1 May 2015.
Considerable work was required to implement the changes and the IGT took the opportunity to review its business model and ensure that the agency had the most effective and efficient organisational structure to carry out its new and existing roles.
The above review, conducted internally, involved substantial consultations with the ATO, the TPB, the Ombudsman and other stakeholders. Interactions with the ATO and TPB as well as all work processes were examined with a focus on improving service delivery and the experience for taxpayers. Efficiency and effectiveness for all of these agencies were also major factors in the deliberations and are reflected in the outcome.
IGT staff and management worked together to redesign roles and improve organisational flexibility and capability.
The redesign also required a significant investment in a new information and communications technology platform and changes to work flows to realise the goals of efficiency and improved taxpayer experience. By way of example, the work flow improvements included the use of Tax File Numbers (TFNs), a key innovation to ensure that the taxpayer is accurately, securely and expeditiously identified at the start and throughout the complaints handling process.
The overall result of the IGT review and redesign was a seamless transfer of complaints handling on 1 May 2015.
The IGT publicly communicated the date of this transfer as well as the positive outcomes that were likely to be realised. The community was informed that there would be a single port of call for all matters of tax administration involving the ATO or the TPB — be they single complaints or matters of a systemic nature. Furthermore, the point was made that an independent and dedicated agency with tax specialist and considerable tax administration experience would be investigating all issues with the aim of achieving procedural fairness. It was also explained how the handling of single complaints would provide the IGT with real-time insight into emerging problems and the ability to address these early and before they could escalate.
In the two months of operation before the end of the financial year, the IGT dealt with 340 cases. It is too early to draw any conclusions from the statistics and we are still fine-tuning our processes and interactions with the ATO and TPB, as well as taxpayers and tax practitioners. However, we have received substantial positive feedback on the role the IGT has played thus far in helping resolve complaints.
As the office settles into its new role and the community’s awareness of it increases, our capacity to provide specialist assistance to improve the administration of the tax system for all Australians will be more fully realised.
The tax disputes review2 arose from a request from the House of Representatives Standing Committee on Tax and Revenue (the Committee) to whom an Inquiry into Tax Disputes (the Inquiry) had been referred by the Acting Assistant Treasurer. The IGT was to focus on the large business and high wealth individual (HWI) themes of the Inquiry. One of the major issues to be considered by the Inquiry was whether a separate agency or a separate appeals area within the ATO should manage disputes or whether current arrangements should continue.
The tax disputes review3 drew on previous IGT reviews4, submissions to the review and additional research and analysis including comparisons with the revenue authorities of the United States of America (USA), Canada, the United Kingdom, New Zealand and Ireland.
The review found that the underlying cause of many concerns raised in submissions appeared to be a lack of separation between the ATO’s original decision makers and those officers who reviewed such decisions at the request of taxpayers. Arguably, the ATO has had the least amount of separation between these functions when assessed against revenue authorities of comparable jurisdictions. This has given rise to a lack, or perceived lack, of independence, leading taxpayers to believe that their cases were not reconsidered afresh and that they had been denied a fair hearing until reaching the Administrative Appeals Tribunal (AAT) or the Federal Court of Australia (Federal Court). Such views were supported by ATO statistics — for example during 2013–14, 85 per cent of taxpayer disputes were resolved without hearing once they reached the AAT.
Following earlier IGT reviews, the ATO had embarked on a programme of work to improve its compliance and dispute resolution approaches, particularly in relation to large businesses and HWIs. However, I found that there was a need for further improvements that would be sustainable and result in a more efficient, effective and transparent process being available to all taxpayers, particularly individuals and small businesses. Such improvements would also provide taxpayers with more confidence that they would be treated fairly and equitably.
My recommendation in this review was to create a separate and dedicated Appeals Group, led by a new Second Commissioner, to embed the improvements within the ATO structure and provide a framework that would be less dependent on the views and ideals of the ATO leadership of the day. The new Appeals Group would manage and resolve tax disputes for all taxpayers including the conduct of pre-assessment reviews, objections and litigation, as well as championing the use of Alternative Dispute Resolution (ADR) throughout the dispute cycle. The separation from both the ATO’s compliance and legal advisory functions would also facilitate a fresh and impartial review of the taxpayer’s case by empowering officers of the new area to resolve disputes through the most appropriate means, taking into consideration the individual circumstances of the taxpayer, their case and assessment of the ATO’s precedential view. Additionally, the new area would ensure that settlements were appropriately scrutinised and in the best interests of the community.
In making the recommendation, I have sought to achieve the highest level of independence whilst retaining the dispute management function within the ATO. In this regard, the need for the Appeals Group to be headed by a new Second Commissioner is paramount, as such roles are statutorily appointed and their tenure and remuneration is pre-determined by the Government and the Remuneration Tribunal respectively and not the head of the relevant agency. Such an arrangement accords with comparable overseas jurisdictions and the views of the International Monetary Fund.
It is pleasing to see that the ATO has taken some steps towards implementing the recommendation by transferring all objection and dispute work from its compliance function to its review and dispute resolution area, which is currently within its legal advisory function (the Law, Design and Practice Group). The creation of the Appeals Group as recommended in this review will require legislative change.
While the report focused largely on improvements to the governance framework for tax disputes, a number of other areas including the collection of revenues due, efficiency, effectiveness and transparency, use and publication of performance information and the legal framework for tax disputes were also considered and briefly discussed.
The valuations review5 was prompted by concerns about the increasing role of valuations in taxation law and their associated compliance costs.
There are inherent difficulties associated with valuations such as their subjective nature, the use of ranges, the potentially prohibitive costs of obtaining them and that minor changes in valuations can result in a disproportionate tax effect. These difficulties, combined with the taxpayers’ burden of proof where the ATO challenges their valuation, increase the potential for uncertainty, disputation and costs for both taxpayers and the ATO.
To address the above concerns, three recommendations were made to Government —valuations be required only where it has the ‘highest net benefit’, legislative shortcuts or safe harbours be provided as an alternative to conducting fresh and full valuations and the eligibility criteria for tax concessions be tapered. These recommendations were bolstered by further recommendations to the ATO to develop administrative safe harbours and provide additional tools to assist small businesses determine their eligibility for Capital Gains Tax concessions through the maximum net asset value test.
The ATO’s processes for identifying valuation risks and engaging valuation expertise were also highlighted as areas requiring improvement. As a result, I have made a number of recommendations aimed at promoting a more transparent and proportionate approach to testing and challenging taxpayer valuations. Specific examples include recommendations to the ATO to develop a preliminary risk assessment process as a less costly and formal alternative to a valuation critique, revise its standard template for instructing valuers, allow taxpayers to access the ATO’s instructions to its valuers and provide guidance to its compliance officers in relation to when to accept a taxpayer’s valuation.
Recommendations were also made with the aim of offering taxpayers greater certainty through an improved Market Valuation Private Ruling system, as well as providing more detailed guidance on the application of valuation related penalties. It should be noted that in my previous ADR review6 some recommendations were also made to avoid disputes or expedite their resolution.
Concerns with the ATO’s administration of penalties have been persistently raised with my office over a number of years. In some previous reviews, particularly the self assessment review, I have made recommendations in this regard.7 However, due to the level of concern and its ongoing nature, the penalties review8 was undertaken to more broadly examine the issues being raised.
It was found that approximately 25 per cent of total penalties raised were later reduced due to unsustained penalty decisions. Accordingly, I have made recommendations for the ATO to improve its penalty decision-making capability (through such means as further development of officers), the clarity and practicality of guidance material as well as its processes for identifying, collecting and analysing penalty information. In relation to taxpayer perceptions that penalties may be used as leverage to influence primary tax disputes, I have made a number of other recommendations including only requiring taxpayers to pay penalties after primary tax disputes have been settled and that discussions on potential penalties be delayed until after position papers have been issued.
I have also encouraged the Government to consider reviewing the penalty regime to promote greater voluntary compliance, and in particular to address issues such as a lack of sufficient differentiation between a range of taxpayer behaviours and the inability of taxpayers to be compensated for time-value of money paid for unsustained penalties. As a result, the Government has announced its intention to consider these issues once the Tax White Paper process has been finalised.9
Two follow up reviews were completed and their reports transmitted to the Minister early in 2014–15. These reports examined the ATO’s implementation of agreed recommendations contained in six of my reports released between August 2009 and November 2010.10
One of the follow up reviews related to the ‘U-turns’ review11 and the impact of a recent Federal Court decision (the ‘U-turns’ follow up review).12 The other follow up review13 examined the implementation of agreed recommendations in the other five reports14 (the follow up review).
‘U-turns’ follow up review
Stakeholders had raised concerns that ‘U-turn’ issues continued to arise particularly during compliance activities where ATO officers were not complying with Practice Statement PSLA 2011/27 which had been created to implement Recommendation 4 in the original ‘U-turns’ review. In addition, the Federal Court’s judgment in Macquarie Bank Limited v Commissioner of Taxation15 had raised some doubt regarding the ATO’s administrative approach in this area as well as the taxpayer’s ability to rely upon ATO practice statements more generally.
Although this follow up review concluded that all recommendations directed to the ATO had been implemented in whole or part, two new recommendations were made to further improve compliance officers’ adherence to the ATO’s procedures and practice as outlined in PSLA 2011/27 and increase transparency in handling ‘U-turns’ or allegations of ‘U-turns’. Although a legislative solution may still be needed, I have suggested that it should only be pursued if concerns continue to arise after implementation of the above two recommendations.
Follow up review
The follow up review of the other five reports concluded that all of the agreed recommendations had been implemented by the ATO in whole or part, had prompted ATO action toward intended improvements or would be examined in later IGT reviews. The review also listed the recommendations made for the previous Government’s consideration and noted the action which had been taken in relation to three of these recommendations.
As advised in my previous annual report, no further follow up review is anticipated with respect to existing or future reviews as this function is now being performed by the ATO’s audit and risk committee whose members include independent professionals from the private sector. However, I do reserve the right to conduct follow up or fresh reviews where concerns emerge with respect to implementing any agreed recommendations.
Work to be completed
At 30 June 2015, two reviews were in the process of finalisation and two remaining reviews on my work programme were yet to be commenced. These reviews are outlined below.
Debt collection review
The debt collection review was prompted by concerns from individuals and small businesses, tax and insolvency practitioners as well as their representative bodies. These concerns related to the ATO’s approach to collecting tax debts, including overdue recovery action, disproportionate action when debts were pursued and the use of external debt collectors.
The review is examining the above issues including the ATO’s approach to insolvency action, payment arrangements and the use of administrative and legislative instruments to secure payment, such as garnishee notices and director penalty notices.
Another significant issue being explored in this review is the continual growth in collectable tax debt. The challenge for the ATO is to put downward pressure on the escalating tax debt whilst ensuring that its recovery action is proportionate and equitable.
At 30 June 2015, this review was substantially completed and its findings will be provided in next year’s annual report.
Tax practitioners review
Significant concerns had been raised by tax agents and business activity statement agents (tax practitioners) in relation to access and adequacy of ATO support and services as well as the resulting strained relationship between tax practitioners and the ATO.
Given the critical role of tax practitioners in a self assessment system, this review was undertaken to address their concerns. The major issues relate to the reliability and functionality of ATO Portals (gateways through which tax practitioners can use a range of ATO services), the management of the Lodgement Program and the ATO’s communications and consultation with tax practitioners.
At 30 June 2015, this review was also substantially completed and its findings will be provided in next year’s annual report.
Review into the ATO’s Taxpayers’ charter and related taxpayer protections
This review will be carried out to explore stakeholder concerns regarding the adequacy of the ATO’s Taxpayers’ charter16 and related taxpayer protections. These include access to enforceable remedies for defective ATO administration, commitment to procedural fairness and, more broadly, adherence to the model litigant obligations.17
There have been international developments in relation to taxpayer rights.18 The Ombudsman has also previously noted that in many cases the aggrieved taxpayers do not receive the desired remedy19 and certain taxpayer cases have garnered significant media attention.20 I have highlighted these concerns as emerging issues in previous reports21 and note that the United States has recently adopted a bill of rights in line with recommendations from their National Taxpayer Advocate.22
This review will commence towards the end of the 2015 calendar year.
Future review into the ATO’s employer obligations audits
Concerns have been raised regarding the additional and unwarranted costs arising from the ATO’s compliance activities with respect to employers’ obligations. These include the determinations of contractor or employee status, taxpayers’ access to avenues of appeal, responding to employee complaints, incorrect assessments and, more generally, unwillingness to engage on issues.
This review will also commence towards the end of 2015 and will examine the ATO’s conduct of employer obligation compliance activities, including those in relation to pay-as-you-go withholding, fringe benefits tax, director penalty notices for the superannuation guarantee charge and the ATO’s engagement with both employees and employers.
Policy initiatives following IGT recommendations
The reviews and other activities of my office result in both immediate and longer-term improvements. Some of these improvements require administrative action to which the ATO generally responds within each IGT report. Other improvements require changes to policy and the Government to make legislative changes over time.
In 2014‒15, Government actions relating to IGT activities included:
- amending the law to transfer the complaints handling function from the Ombudsman to the IGT (see my Submission to the 2011 Tax Forum)23;
- amending the law to provide taxpayers the option to withdraw excess non-concessional contributions and not incur the excess contributions tax24 (see recommendation 2.1 in my excess contributions tax review); and
- simplifying tax and superannuation reporting obligations by allowing employers to automatically report payroll information to the ATO when employees are paid (see recommendation 3 and the preceding discussion of available options in my superannuation guarantee charge review).25
The Federal Parliament
As representatives of the Australian community, Members of Parliament are well-placed to identify concerns affecting their constituents. Through annual public hearings, matters of concern in tax administration are raised with me directly and I am grateful to them for assisting my office in this way.
The Inspector-General of Taxation Act 2003 (IGT Act) also provides for Parliamentary bodies to make requests for reviews to be undertaken on certain topics26, an example of which is the previously discussed request from the House of Representatives Committee on Tax and Revenue for my office to assist with its Inquiry into Tax Disputes.
I would also like to thank the many taxpayers, tax practitioners and their respective representative bodies who bring matters to our attention and for their assistance in the conduct of reviews. Due to its relative size, my office is heavily reliant on the contribution of such external stakeholders to deliver improvements to tax administration in this country.
The contribution of external stakeholders has been increasing as they become better acquainted with the work of my office. Such contributions are likely to increase further as the community uses the complaints handling service provided by my office.
Public sector stakeholders
The IGT continues to engage and consult with the Ombudsman and the Commonwealth Auditor-General. Some changes are necessary in this regard as a result of the transfer of the tax complaints handling function from the Ombudsman to my office, as well as associated amendments to the IGT Act. However, it is envisaged that our agencies will continue to cooperate on matters of mutual relevance and interest.
My office has also continued to work with other government agencies. This ensures that my office is aware of whole-of-government initiatives when identifying improvements to the tax system. I appreciate the assistance that my office has received from these agencies.
I also thank the ATO and its personnel for their professional assistance. Communication between our respective offices has been frank, open and has led to improvements to the tax system.
It is important to appreciate that a degree of tension should exist between an administrator and the scrutineering function which, professionally managed, is entirely appropriate to maintain the community’s confidence in the scrutineer’s independence. The independence of the IGT as a consulting scrutineer is crucial. It is therefore important to ensure the constructive relationship with the ATO is maintained, balanced and professional in approach.
Lastly, I thank the Treasury as a partner in this relationship and also the Treasurer, the Assistant Treasurer and the Acting Assistant Treasurers and their staff for their support.
Tax systems do not exist in isolation and frequently interact with events and developments in other jurisdictions.
Internationally, my office has continued to engage with a number of overseas revenue agencies including New Zealand’s Inland Revenue Department, the United Kingdom’s Her Majesty’s Revenue and Customs, the Irish Office of the Revenue Commissioners, the USA’s Internal Revenue Service and the Canada Revenue Agency. Such engagement provides useful insights into common tax administration issues and can result in the development of innovative solutions in the Australian context. I will continue to build and foster these relationships in the years to come.
My office also examines the research, insights and findings of the Organisation for Economic Co-operation and Development (OECD) for a broader international perspective.
In the coming financial year, the IGT’s focus will be to recruit and train additional staff to achieve a more effective and efficient complaints handling service which enhances the taxpayers’ experience. Further fine-tuning of our internal system and processes as well as interactions with the ATO and TPB may also be required.
Once the complaints handling service is operating at its optimal level, the IGT will be closer to realising its goal of gaining real-time insight into emerging issues and moving quickly to address problems before they escalate into major causes of taxpayer discontent. This could mean that in future, the IGT may undertake more targeted reviews in an expedited manner to address particular areas where significant complaints have been received.
The IGT will continue to consult extensively with the community and conduct broader reviews similar to its current systemic reviews as the need arises. Ultimately the number of targeted and broader reviews will be determined based on issues arising from the complaints handling services as well as broader feedback from the community.
Inspector-General of Taxation
The IGT seeks to improve the administration of the tax system for the benefit of all Australians. Specifically, the IGT is set up as an independent statutory agency to:
- improve the administration of taxation laws for the benefit of all taxpayers, tax practitioners and other entities;
- provide independent advice to the Government on the administration of taxation laws;
- investigate complaints by taxpayers, tax practitioners or other entities about the administration of taxation laws; and
- investigate administrative action taken under taxation laws, including systemic issues, that affect taxpayers, tax practitioners or other entities.
Figure 1: Outcome and programme structure
Figure 2: Inspector-General of Taxation executive structure
Appendix 1 — Expenses for outcomes
1. Ordinary annual services (Appropriation Bill No. 1). The orginal budget provided for funding of $3.329 million. As at 30 June 2015 the associated funding was permanently withheld ($0.5 million) under s 51 of the Public Governance, Performance and Accountability Act 2013.
|Average staffing level (number)||9||9|
Appendix 2 — Agency resource statement
1. Appropriation Act (No. 1) 2014-15 and Appropriation Act (No. 3) 2014-15. This may also include prior year departmental appropriation and section 74 relevant agency receipts.
2. Includes an amount of $0.03 million for the Departmental Capital Budget. For accounting purposes this amount has been designated as 'contributions by owners'.
1 Australian Government, Budget Paper No. 2, Part 2: Expense Measures (May 2014).
2 IGT, The Management of Tax Disputes (2014).
3 Above n 2.
4 IGT, Review into aspects of the Tax Office’s settlement of active compliance activities (2009); IGT, Report into the Australian Taxation Office’s large business risk review and audit policies, procedures and practices (2011); IGT, Review into the ATO’s use of early and alternative dispute resolution (ADR) (2012); IGT, Review into the Underlying Causes and the Management of Objections to Tax Office Decisions (2009); IGT, Review into the ATO’s compliance approaches to small and medium enterprises with annual turnovers between $100 million and $250 million and high wealth individuals (2012); IGT, Review of Tax Office management of Part IVC litigation (2006); IGT, Review into improving the self assessment system (2013).
5 IGT, Review into the ATO’s administration of valuation matters (2015).
6 See above n 4.
7 Self assessment review, above n 4; See also large business and settlements reviews above n 4, and IGT, Review into the Tax Office’s administration of penalties and interest arising from active compliance activities (2005).
8 Above n 7.
9 Mathias Cormann, Inspector-General of Taxation Report into the Australian Taxation Office’s Administration of Penalties (media release, MC 70/14, 8 July 2014).
11 IGT, Review into delayed or changed Australian Taxation Office views on significant issues (2010).
12 IGT, Follow up review into delayed or changed Australian Taxation Office views on significant issues (2014); Macquarie Bank Limited v Commissioner of Taxation  FCA 887.
13 IGT, Follow up review into the Australian Taxation Office’s implementation of agreed recommendations in five reports released between August 2009 and November 2010 (2014).
14 IGT, Review of the Tax Office’s Administration of Public Binding Advice (2009); Objections and settlements reviews above n 4; IGT, Review into the Non lodgement of Individual Income Tax Returns (2009); and IGT, Review into the ATO’s Administration of the Superannuation Guarantee Charge (2010).
15 See above n 12.
16 ATO, Taxpayers’ charter: What you need to know (2010).
17 Legal Services Directions 2005 app B made under s 55ZF of the Judiciary Act 1903.
18 National Taxpayer Advocate (USA), 2011 Annual Report to Congress (2011); National Taxpayer Advocate, 2013 Annual Report to Congress (2013); European Commission, ‘A European Taxpayer’s Code’ (Consultation paper, TAXUD.D.2.002 (2013) 276169, 2013); Asia-Oceania Tax Consultants’ Association, ‘Model Taxpayer Charter to promote greater fairness in taxation across the world’ (Media release, 13 May 2013) <www.aotca.org>.
19 Commonwealth Ombudsman, Taxation Ombudsman Activities 2006 (2007) p 6.
20 7:30 ABC TV (9 April 2012) referred to in John Bevacqua, ‘Redressing the imbalance — challenging the effectiveness of the Australian taxpayers’ charter’ (2013) 28 Australian Tax Forum 377, p 398; 7:30 ABC TV, ‘Tax office stands accused of bullying behaviour’ (1 November 2012) referred to in Greg Hoy, ‘‘Draconian’ ATO accused of bullying taxpayers’ (2 November 2012) <www.abc.net.au>.
21 IGT, Review into the ATO’s Change Program (2010); Large business and self assessment reviews above n 7; IGT, Annual Report 2012–13 (2013) p 7.
22 Internal Revenue Service, ‘IRS Adopts “Taxpayer Bill of Rights;” 10 Provisions to be Highlighted on IRS.gov, in Publication 1’, (media release, IR-2014-72, 10 June 2014).
23 Tax and Superannuation Laws Amendment (2014 Measures No.7) Act 2015; IGT, Submission to the 2011 Tax Forum (2011).
24 Tax and Superannuation Laws Amendment (2014 Measures No.7) Act 2015; IGT, Review into the Australian Taxation Office’s compliance approach to individual taxpayers — superannuation excess contributions tax (2014).
25 Bruce Billson, Cutting Payroll Red Tape (media release, 28 December 2014); Superannuation Guarantee Charge review above n 14.
26 Paragraph 8(3)(d) of the Inspector-General of Taxation Act 2003.